Opinion
GCF 20-046
03-23-2021
BOARD OF OVERSEERS OF THE BAR Petitioner v. CHARLES T. FERRIS, ESQ. of Waterville, ME Me. Bar No. 007550 Respondent
STIPULATED REPORT OF FINDINGS AND ORDER OF PANEL C OF THE GRIEVANCE COMMISSION M. Bar R. 13(e)
Margaret D. McGaughey, Esq. Panel Chair
On February 24, 2021, with due notice and pursuant to Maine Bar Rule 13(e), Panel C of the Grievance Commission conducted a public disciplinary hearing concerning misconduct by the Respondent, Charles T. Ferris, Esq. Prior to the hearing date, the Board of Overseers of the Bar (the Board) and Attorney Ferris, through his counsel Walter F. McKee, Esq., waived all hearing formalities of M. Bar R. 13 and elected to proceed directly with a stipulated resolution of the complaint matter. See M. Bar R. 13(e)(7)(D).
At the hearing on that Petition, Attorney Ferris appeared and was represented by his counsel, Attorney Walter F. McKee. The Board was represented by Bar Counsel Julia A. Sheridan. The complainant, Emily Mee, was provided notice of the hearing.
Prior to the scheduled hearing date, the parties notified the Clerk that they had negotiated a settlement of the disciplinary matter. The proposed sanction Report and Decision was submitted to the Clerk for the Commission's advanced review and consideration. Bar Counsel also provided Ms. Mee with a copy of the parties' proposed Stipulated Report in advance of the hearing.
Having reviewed the agreed, proposed findings as presented by counsel, the Grievance Commission makes the following disposition
FINDINGS
Respondent Charles T. Ferris, Esq. (Ferris) of Waterville, ME has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine. As such, Attorney Ferris is subject to the Maine Bar Rules, and the Maine Rules of Professional Conduct (M.R.P.C.). Attorney Ferris was admitted to the Maine Bar in 1992 and he currently practices in Waterville.
According to the parties' stipulations, the Panel finds the following relevant facts:
Emily Mee filed this complaint on February 4, 2020. In the complaint she alleged that Attorney Ferris had filed a civil action against her, despite a conflict that prohibited him from doing so. Attorney Ferris moved to withdraw from the case after he learned of Mee's grievance complaint.
By way of background, Ms. Mee was a romantic partner to MM from approximately 2013 through October 2017. At some point, MM's parents died and he inherited personal property and money. Some or all of that money was deposited to an account jointly owned by Ms. Mee and MM. In October 2017, MM was incarcerated.
At various times, Attorney Ferris represented Ms. Mee. One of those instances was relevant to this matter. In January 2017, Attorney Ferris was retained by Ms. Mee, MM, and a third person named KK for representation in a civil matter in Somerset County. In August 2018, after MM was incarcerated, Ms. Mee and MM were dismissed from the civil action. Attorney Ferris continued to represent KK in that matter.
In that matter, Attorney Ferris represented the defendants. The matter related to a tenancy relationship the three defendants held with the plaintiff in that action, and the documentation of proper payment of certain funds to prove ownership of certain equipment. As Attorney Ferris explained:
Shortly before the K matter was tried. MM informed me from prison that Ms. Mee would provide to my office a statement from a bank showing major expenditures made to KK and certain suppliers from a jointly held account in MM's and Ms. Mee's name. This document was used on KK's behalf as both Ms. Mee and MM had been dismissed as defendants by the time of trial. The exhibit was used to establish that MM and Ms. Mee were the tenants of KK's property and to establish their ownership of medical marijuana growing equipment in KK's possession, but which the Plaintiffs were claiming was rightfully theirs.
In other words, Ferris proved that equipment in KK's possession rightfully belonged to Mee and MM because that equipment had been properly purchased by Mee and MM with funds from the jointly held account.
In January of 2020, Attorney Ferris filed a new civil action against Emily Mee on behalf of MM. In that new action, Attorney Ferris alleged that Emily Mee had improperly converted money belonging to MM from the same account he had characterized as joint in the prior action. Without delving into the questionable validity of a claim for conversion of joint property, Attorney Ferris's conduct violated Rule 1.9.
As delineated within M.R. Prof. Conduct 1.9, "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing." Notably, matters are "substantially related" for purposes of the rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.
Here, the matters are substantially related because they involve the same set of transactions from the same account. They also involve the same people associated with that account.
Attorney Ferris does not dispute that the two actions involve the same account. In his final letter responsive to the grievance complaint, he wrote, "... I did not believe at the time that there was a conflict in representing MM in an action involving MM v. Mee. Respondent did not learn that the money at issue was actually deposited in the same account referenced in the KK exhibit until after the onset of this Bar Complaint."
Attorney Ferris now agrees that he should not have undertaken representation of MM against Ms. Mee under those circumstances.
Taking these facts together, the Panel finds that Attorney Ferris's conduct violated Maine Rules of Professional Conduct 1.9(a) and 8.4(A)
CONCLUSION AND SANCTION
The Panel notes that the purpose of bar disciplinary- proceedings is not punishment, but rather the protection of the public from attorneys who, by their conduct, have demonstrated that they are unable to properly discharge their professional duties. At a minimum, Attorney Ferris failed to recognize and address the conflict arising out of a subsequent proceeding that involved his clients/former client.
After questioning by the Grievance Commission during the disciplinary hearing, Ferris accepted responsibility for his actions. He expressed remorse for his serious violations of the Maine Rules of Professional Conduct. Since the evidence supports a finding and Attorney Ferris agrees that he did in fact violate the Maine Rules of Professional Conduct, the Commission must now turn to the issue of an appropriate sanction.
The Commission relies on Maine Bar Rule 21(c) and the ABA Standards for Imposing Lawyer Sanctions for guidance as to the factors to consider and apply in the issuance of an appropriate disciplinary sanction. Maine Bar Rule 21 states as follows:
(c) Factors to be Considered in Imposing Sanctions. In imposing a sanction after a finding of lawyer misconduct, the Single Justice, the Court, or the Grievance Commission panel shall consider the following factors, as enumerated in the ABA Standards for Imposing Lawyer Sanctions:
(1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently;
(3) the amount of the actual or potential injury caused by the lawyer's misconduct; and
(4) the existence of any aggravating or mitigating factors.
Additionally, pursuant to M. Bar R. 13(e)(6)(8), prior to imposing a sanction, the Commission has considered the existence or absence of any prior sanction record.
In this matter, Ferris agrees that his misconduct violated duties that he owed to his former client, Ms. Mee, and to the profession. Attorney Ferris also has a prior disciplinary history.
Taking all of the above factors into consideration, and consistent with the analysis outlined in the ABA Standards and M. Bar R. 21(c), the Panel finds that a Public Reprimand combined with a period of probation constitutes a satisfactory sanction for the misconduct. It also comports with the purposes of the Bar Rules. See M. Bar R. 21(b)(5).
Therefore, the Panel accepts the agreement of the parties, including Attorney Ferris's separately executed waiver of the right to file a Petition for Review, and concludes that the appropriate disposition of this case is a REPRIMAND with Probation to Charles T. Ferris, Esq. A condition of probation is that, within 21 days of February 24, 2021, Respondent Charles T. Ferris, Esq. will provide to the Board Clerk, Melissa Littlehale, detailed documentation of his law firm's conflict of interest policy, how that policy has been established, and how his law firm uses it. Within 14 days of receiving documentation of the conflict-of-interest policy, the panel will review the policy, confer, and determine whether to sign the Stipulated Report of Findings and Order.
Those sanctions are now hereby issued and imposed upon Attorney Ferris pursuant to M. Bar R. 13(e)(10)(C) and 21(b)(5).
Andre J. Hungerford, Esq. Panel Member, Tim I. Marks Public Member